The Genesis of Justice

by Alan M. Dershowitz

  (The Hebrew word is avoni, which has been variously translated as “my sin,” “my punishment,” and “my iniquity.”) Cain expresses fear that he in turn will be murdered. God further softens his punishment by setting a sign on him, warning all that Cain is in God’s witness protection program, and if anyone kills him, “vengeance shall be taken on him sevenfold.” Yet another unjust threat of disproportionate punishment! Hasn’t God learned anything from the failure of his first threat? Interestingly, the commentators generally reject the plain meaning of the threatened punishment against anyone inclined to kill Cain: “The verse does not mean that God will punish him seven times as much as he deserves, for God is just and does not punish unfairly.” This is a remarkable view for several reasons. First, how can anyone say that God never imposes more punishment than an individual deserves? The Bible is full of examples of excessive and unjust punishment—at least by human standards. In this case, the wrongdoer would at least have been warned of the sevenfold punishment—whatever sevenfold might mean in the context of killing another! 2 In other instances God punishes with no warning.

  Why then is God so much more sympathetic to Cain—who knew the difference between right and wrong, who killed for a trivial reason, and who then tried to cover up his murder—than he was to Adam and Eve—who did not know right from wrong, who were tricked into committing a victimless crime, and who admitted their violation (though blamed it on others)?

  Some commentators have observed that God Himself may have been partly to blame for Cain’s crime. By denigrating Cain’s offering, God provoked the young man’s anger. Simeon ben Yochai translated God’s words to Cain as “the voice of thy brother’s blood cries out against me from the ground.” This “seems to regard Cain and Abel as two gladiators, wrestling in the King’s presence [and] if the King desires it, he may separate them,” or he may allow one to kill the other by ignoring his plea. According to this interpretation, God heard Abel’s cry and did not intercede. Thus He is partially responsible for the resulting tragedy. 3 A rabbinic Aggadah has Cain saying to God, “There is neither justice nor judge” in the world. 4 In effect, Cain is accusing God of having provoked him into fratricide. A contemporary observer makes a similar point: “In this story, God behaves like the most inept of parents.” 5

  If God’s action and inaction provoked Cain into killing Abel, then it becomes understandable why God would mitigate Cain’s punishment. Provocation has traditionally been recognized as a mitigating consideration, though the victim is generally the provocateur.

  Other commentators have argued that the sin of Adam and Eve was worse than the crime of Cain, because they violated a direct command from God, while Cain’s murder preceded any commandment against killing. As a midrash put it: “Cain slew, but had none from whom to learn [the enormity of his crime].” 6 Another midrash elaborates on this excuse, suggesting that Cain offered the following defense: I had never seen a man killed, so how was I to know that the stones I threw at Abel would take his life? 7 This defense is an early variant on what eventually became the McNaughton rule of legal insanity, which exculpates a person who does not understand “the nature and quality” of his act or know that it is “wrong.” A mentally retarded man who squeezes a child in order to show affection is not held responsible for murder if the child dies.

  There are several problems with this argument. First, the legacy left to Cain by his parents included knowledge of right and wrong, and anyone with such knowledge understands it is wrong to murder. We refer to crimes such as murder as malum in se—wrong in themselves, inherently wrong. No criminal statute is required to tell a civilized person that it is wrong to kill. Eating a prohibited fruit, on the other hand, is the kind of crime we call malum prohibitum—a crime only because it is prohibited by law. Second, anyone who has had experience with animals understands death, and Cain knew that his brother had sacrificed animals. Third, recall Cain’s famous answer to God—“Am I my brother’s keeper?” (or in the translation we are using: “Am I the watcher of my brother?”). In addition to originating the great tradition of answering a question with another question, its substance suggests that Cain realized he had done something so terrible that he would deny it even to God. Fourth, Abel’s blood cried out “from the soil,” suggesting that Cain buried his brother after killing him—an act that indicates he both understood the finality of death and attempted to conceal the evidence. Fifth, the Bible uses the plural of blood, d’mai, in describing what was crying out. This led some commentators to conclude that Cain had inflicted multiple wounds on Abel to assure he would die. Finally, God did warn Cain, though not specifically about murder. After rejecting Cain’s offering, but before the killing, He asked the disgruntled young man, “Why are you so upset? Why has your face fallen?” Then He admonished Cain, “If you intend good, bear-it-aloft, but if you do not intend good, at the entrance is sin, a crouching demon, toward you his lust—but you can rule over him.”

  This phrase has been interpreted as God’s warning to human beings that despite His omniscience, we have free will. We can rule over our evil inclinations. A midrash relates the following story to illustrate free will: A man encounters a hunter holding a bird in his hand. The hunter asks the man to guess—at the peril of his own life—whether the bird is alive or dead. The bird is alive, but if the man says it is alive, the hunter will suffocate it by simply keeping it cupped in his hand for a moment. If the man guesses it is dead, he will open his hand and allow it to fly away. The man answers the hunter by saying, “Its life and death are in your hands.” 8

  Like the hunter, Cain had free will as to whether his brother would live or die. God had cautioned him to rule over his demons, but Cain succumbed to sin and murdered his brother. Rashi interprets God’s reference to “the entrance” as meaning “the entrance of your grave.” Yet he does not ask why God spared Cain the punishment of death. Rashi does raise the intriguing question of why Cain was afraid of being slain, since there were not yet people in the world, other than Adam and Eve—and he certainly did not fear that his own mother and father would kill him. This raises the even larger question concerning the absence of other people who would make procreation possible. The Bible says, “And Cain knew his wife, and she conceived.” Most of the traditional commentators simply avoid this inconvenient question, as I painfully learned in my days at the yeshiva. This has led skeptics—such as the lawyer Clarence Darrow in the famous Scopes “monkey” trial—to mock the Bible for its inconsistency. I remember feeling somewhat vindicated when I saw the play Inherit the Wind and watched Clarence Darrow cross-examine William Jennings Bryan about “where Cain got his wife.” 9 Some traditional commentators note that the text of the Bible does not purport to render a complete history; the oral tradition amplifies the text and provides answers to such questions.

  We are still left wondering why God is so soft on Cain’s murder of Abel. Does He not value human life more than the fruit of a tree—or even compliance with His unexplained prohibitions? This seems unlikely, since biblical and midrashic tradition tend to value human life greatly, recognizing that when a person, especially one still capable of having children, is killed, so too are all of his or her potential descendants. According to a midrash, God says to Cain, “The voice of thy brother’s blood … cries out …, and likewise the blood of all the pious who might have sprung from the loins of Abel.” 10 The talmudic principle “He who kills a single human being, it is as if he has destroyed the entire world” grows directly out of the Cain and Abel narrative. 11 Those who engage in genocide do so with the goal of preventing future generations. It is impossible to comprehend what was lost in the Holocaust or any other mass murder—how many of those killed might have saved the lives of countless others by, for example, discovering cures for diseases? Even the cost of one killing is incalculable.

  One resolution of the apparent conflict between God’s soft punishment of Cain and the Bible’s high regard for life is the possibility that the murder by Cain of Abel
was the punishment inflicted on Adam and Eve for their sin. For a parent, there is no greater tragedy than having one child murder another. An intriguing midrash elaborates on the impact of the son’s actions on their parents. The text says that Cain “rose up” (va’yyakom) against Abel, thus implying that Cain “lay beneath” Abel and was forced to defend himself against his stronger brother. A midrash infers that the brothers were engaged in a “legal argument” and that Cain saved himself from Abel’s anger by importuning his brother to spare him on account of their parents: “We two only are in the world: what will you go and tell our father [if you kill me]?” Abel was “filled with pity” and let him go, whereupon the ungrateful Cain “rose up and killed” Abel. Rabbi Yochanan derives from this midrash the proverb: “Do not do good to an evil man, then evil will not befall you.” 12

  Some commentators expressed concern that Cain’s lenient punishment would fail to deter potential killers from acting on their own evil impulses, especially since Cain eventually becomes “the builder of a city.” Crime seems to pay in the early biblical world. Consequently some commentators saw the need to create fantastic midrashim describing the horrible, if delayed, punishment visited upon Cain and his descendants. The most extreme is the following tale of divine retribution:

  The end of Cain overtook him in the seventh generation of men, and it was inflicted upon him by the hand of his great-grandson Lamech. This Lamech was blind, and when he went a-hunting, he was led by his young son, who would apprise his father when game came in sight, and Lamech would then shoot at it with his bow and arrow. Once upon a time he and his son went on the chase, and the lad discerned something horned in the distance. He naturally took it to be a beast of one kind or another, and he told the blind Lamech to let his arrow fly. The air was good, and the quarry dropped to the ground. When they came close to the victim, the lad exclaimed: “Father, thou hast killed something that resembles a human being in all respects, except it carries a horn on its forehead!” Lamech knew at once what had happened—he had killed his ancestor Cain, who had been marked by God with a horn. In despair he smote his hands together, inadvertently killing his son as he clasped them. Misfortune still followed upon misfortune. The earth opened her mouth and swallowed up the four generations sprung from Cain—Enoch, Irad, Mehujael, and Methushael. Lamech, sightless as he was, could not go home; he had to remain by the side of Cain’s corpse and his son’s. Toward evening, his wives, seeking him, found him there. When they heard what he had done, they wanted to separate from him, all the more as they knew that whoever was descended from Cain was doomed to annihilation. But Lamech argued, “If Cain, who committed of malice aforethought, was punished only in the seventh generation, then I, who had no intention of killing a human being, may hope that retribution will be averted for seventy and seven generation.” With his wives, Lamech repaired to Adam, who heard both parties, and decided the case [for separation brought by the wives] in favor of Lamech.” 13

  This midrash reminds me of the old Hays Office, which used to censor any motion picture that failed to show crime followed by appropriate punishment. 14 Life, however, is often more like modern films, such as Primal Fear and Sleepers, in which the criminal gets away with it. Woody Allen’s 1989 masterpiece Crimes and Misdemeanors wonderfully captures the frequent asymmetry between crime and punishment—a reality that Genesis recognizes but the midrashic commentators often seek to deny.

  Soon after Cain killed his brother, God “repented” over His creation of human beings because they were so awful. No wonder! God was not doing a very good job deterring crime. He was sending conflicting messages about the consequences of sin. He was allowing humans to get away with murder! It is not surprising, therefore, that “the Lord saw that the wickedness of man was great in the earth.” The system of divine rewards and punishment was not working. The crime rate was skyrocketing. It was time for God to get tough.

  1. Ginzberg, vol. 2, p. 49.

  2. The Torah with Rashi, Sapirstein edition (Art Scroll, Mesorah, 1995), p. 45, fn 5. Quoting Gur Aryeh; Leket Bahir.

  3. Midrash Rabbah (Bereshith), p. 189.

  4. Quoted in Armstrong, Karen, In the Beginning (New York: Ballantine, 1996), p. 36. Ironically, these are the same words attributed to Rabbi Elisha; see p. 235.

  5. Armstrong at p. 36.

  6. Midrash Rabbah, vol. 1, p. 191.

  7. Ginzberg at p. 110.

  8. A shorter variant of this story can be found in Midrash Rabbah, vol. 1, p. 157.

  9. The Scopes Trial, Notable Trials Library (1990), p. 302.

  10. Ginzberg at p. 110.

  11. The Mishnah derives this principle directly from the language of the Cain and Abel narrative:

  [I]n capital cases, his [the executed person’s] blood and the blood of his [eventual] posterity lie at his door until the end of the world, for thus have we found in the case of Cain who slew his brother, as it is said, “thy brother’s blood [Hebrew word damin] crieth”—it does not say “thy brother’s blood [dam—singular]” but “thy brother’s bloods [damin—plural],” thus indicating both his blood and the blood of his succeeding generations. . . . Therefore was a single man only created to teach you that if anyone destroy a single soul from the children of man, Scripture charges him as though he had destroyed a whole world. . . . (Mishna Sanhedrin 4:5)

  12. Midrash Rabbah, vol. 1, p. 187. If the fight began as a legal argument and then escalated into a murderous brawl, the legal consequences might be complex. A litigant who takes the law into his own hands by starting a fight may still be able to raise a self-defense claim if his opponent’s response is disproportionate. Perhaps the complexity of the matter, which is barely hinted at in the text, explains God’s relative leniency toward Cain.

  13. Ginzberg, pp. 116-17.

  14. The Hays Office, which was created in 1922 by movie industry moguls to help prevent government censorship of motion pictures, imposed a self-regulating “Production Code.” The code’s specific rules included

  I. CRIMES AGAINST THE LAW

  These shall never be presented in such a way as to throw sympathy with the crime as against law and justice or to inspire others with a desire for imitation.

  1. Murder

  a. The technique of murder must be presented in a way that will not inspire imitation….

  c. Revenge in modern times shall not be justified.

  The code was accompanied by an official list of “Reasons,” which explained:

  The treatment of crimes against the law must not…

  2. Inspire potential criminals with a desire for imitation.

  3. Make criminals seem heroic and justified.

  Revenge in modern times shall not be justified. In lands and ages of less developed civilization and moral principles, revenge may sometimes be presented. This would be the case especially in places where no law exists to cover the crime because of which revenge is committed.

  See Moley, Raymond, The Hays Office (New York: The Bobbs-Merrill Company, 1945), at pp. 241-48 (emphasis in original).

  CHAPTER 3

  God Overreacts—and Floods the World

  Now it was when humans first became many on the face of the soil

  and women were born to them,

  that the divine beings saw how beautiful the human women were,

  so they took themselves wives, whomever they chose.

  YHWH said:

  My rushing-spirit shall not remain in humankind for ages, for they too are flesh;

  let their days be then a hundred and twenty years!

  The giants were on earth in those days,

  and afterward as well,

  when the divine beings came in to the human women

  and they bore them [children]—

  they were the heroes who were of former ages, the men of name.

  Now YHWH saw

  that great was humankind’s evildoing on earth

  and every form of their heart’s planning was only evil all the day.

  T
hen YHWH was sorry

  that he had made humankind on earth,

  and it pained his heart.

  YHWH said:

  I will blot out humankind, whom I have created, from the face of the soil,

  from man to beast, to crawling thing and to the fowl of the heavens,

  for I am sorry that I made them.

  But Noah found favor in the eyes of YHWH.

  [God then flooded the world for forty days]

  GENESIS 6:1-8

  Now God blessed Noah and his sons and said to them:

  Bear fruit and be many and fill the earth!

  Fear-of-you, dread-of-you shall be upon all the wildlife of the earth and upon all the fowl of the heavens,

  all that crawls on the soil and all the fish of the sea—

  into your hands they are given.

  All things crawling about that live, for you shall they be, for eating,

  as with the green plants, I now give you all.

  However: flesh with its life, its blood, you are not to eat!

  However, too: for your blood, of your own lives, I will demand-satisfaction—

  from all wild-animals I will demand it,

  and from humankind, from every man regarding his brother,

  demand-satisfaction for human life.

  Whoever now sheds human blood,

  for that human shall his blood be shed,

  for in God’s image he made humankind.

  As for you—bear fruit and be many, swarm on earth and become many on it!

  God said to Noah and to his sons with him, saying:

  As for me—here, I am about to establish my covenant with you and with your seed after you,

  and with all living beings that are with you: fowl, herd-animals, and all the wildlife of the earth with you;

  all those going out of the Ark, of all the living-things of the earth.

  I will establish my covenant with you: